Last week a new court decision came down that could complicate workplace protections for LGBTQ individuals. Which is great because that’s exactly what someone trying to be true to their sexual orientation needs.
The Seventh Circuit rejected a woman’s claim that Title VII of the Civil Rights Act protects against sexual orientation discrimination. According to the decision, only the Supreme Court or Congress—who has repeatedly refused to expand Title VII through the Employment Non-Discrimination Act (ENDA)—has the power to make that law. In doing so they’ve established some against-the-grain precedent that manages to be faithful to the law and a Catch-22 all at once.
It’s a decision that flies in the face of unofficially established precedent up unto this point. The EEOC, notably, has formally declared that they believe Title VII covers lesbian, transgender, gay, and bisexual workers from discrimination, and filed two pending sex discrimination lawsuits to that effect. There are even several cases the EEOC has won based on the philosophy that Title VII protects lesbian, bisexual, and gay workers. And they weren’t alone in that respect.
“While Title VII does not expressly include sexual orientation as a protected characteristic in its ban against employment discrimination, your faithful blog authors have discussed a number of legal theories under which LGBT employees have sought relief,” said Brian McGinnis, on the Employment Discrimination Report. “We have discussed the sex stereotyping theory, i.e., the idea that an employee’s failure to conform to gender stereotypes or norms may be actionable for LGBT plaintiffs under Title VII. We have also discussed what might be called the “referential” theory, under which the EEOC has argued that sexual orientation cannot be understood as a distinct concept from sex, and that sexual orientation discrimination is therefore sex discrimination by definition.”
With this new precedent, however, that strategy is a bit complicated—for a multitude of reasons. It means that, in the eyes of federal law, there’s little to no recourse for employees who feel their sexual orientation may be a wedge in the workplace.
In a game of abnormal hypotheticals, what if an employee was a lesbian but then transitioned? Vice versa? Their gender identity would be the only thing protected under Title VII. Even Judge Ilana Rover seems openly conflicted in her opinion for the Seventh Circuit, that Title VII can help with sex identity but not sexual orientation.
“It seems illogical to entertain gender non‐conformity claims under Title VII where the non‐conformity involves style of dress or manner of speaking, but not when the gender non‐conformity involves the sine qua non of gender stereotypes—with whom a person engages in sexual relationships. And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms,” said Rover, in her 40-page opinion joined by Judge William Bauer.
And indeed it’s a strange line that’s drawn in the sand: Following high-profile, precedent-setting decisions like Obergefell, protections aren’t in line for LGBTQ employees to count on truly living out and proud. As Michelle O’Neil of author on Gay & Lesbian Family Law in Texas, said when Obergefell came down, the Supreme Court’s decision legitimized same-sex marriage in a big way, but without protections they could still be “married on Saturday and fired on Monday.”
“This is only the beginning of a whole lot of other issues that will come from this,” said O’Neil. “It’s overarching effects show itself not only in the right to go get a marriage license, but the right to divorce, inherit, adopt, designate their own beneficiaries…I think that this is just a first step—and a very important step—that legitimizes same-sex relationships.”
The problem now, it seems, is that another branch of government needs to take that next step. Employers around the country are no doubt proactively taking steps of their own to make sure their workplace is compliant with the local protections and patchwork of LGBTQ anti-discrimination laws that make up the employment law map these days. Indeed, even with the Seventh Circuit’s decision most employment policies won’t change. But it’s time that LGBTQ employees can count on their judicial and legislative representatives to step up and protect their rights. As Rover writes in her opinion, lower courts are already trying.
“The district courts—the laboratories on which the Supreme Court relies to work through cutting‐edge legal problems—are beginning to ask whether the sexual orientation‐denying emperor of Title VII has no clothes,” said Rover. “Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”